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Dismissal unfair where earlier final written warning inappropriate

In Bandara v British Broadcasting Corporation (UKEAT/0335/15/JOJ), the Employment Appeal Tribunal considered whether an employee had been unfairly dismissed as a result of the employer’s reliance on a previous final written warning that was ‘manifestly inappropriate’.

Mr Bandara had worked for the BBC for 18 years and, at the date of his dismissal, was employed as a senior producer in the BBC’s Sinhalese Service. He was subjected to disciplinary proceedings in respect of two incidents. The first incident involved him shouting at a senior manager in March 2013. He promptly apologised and no further action was taken at the time. The second incident involved his decision in July 2013 to prioritise coverage of the 30th anniversary of a historical event in Sri Lanka known as Black July over that of the birth of Prince George. Disciplinary action was taken in respect of both incidents and a final written warning was issued.

Mr Bandara was again subjected to disciplinary action in 2014. This related to allegations of bullying and intimidation, abusive behaviour towards colleagues and refusing to obey management instructions. At the conclusion of the further disciplinary process, Mr Bandara was dismissed and pursued claims of race discrimination and unfair dismissal.

Employment tribunal decision

The employment tribunal (ET) rejected Mr Bandara’s claims but in doing so noted that it considered the final written warning to be a ‘manifestly inappropriate’ sanction for the earlier disciplinary offences. Mr Bandara appealed to the Employment Appeal Tribunal (EAT) against the dismissal of his claims and the BBC appealed against the decision regarding the final written warning.

The EAT noted the general rule that earlier disciplinary decisions should not be reopened as a matter of course. The aggrieved employee needs to be able to point to particular circumstances that justify an examination of the suitability of the sanction that was applied. Examples include an allegation of bad faith that has some real substance to it, the absence of any apparent grounds for the sanction or something that makes the sanction manifestly inappropriate, ie ‘there is something about its imposition that once pointed out shows that it plainly ought not to have been imposed’. The ET was entitled to take the view that the misconduct in question plainly did not amount to gross misconduct, either on a reading of the BBC’s own disciplinary procedure or by accepted standards.

Having decided that the final written warning was manifestly inappropriate, the ET had considered whether the decision to dismiss would have been one that the BBC could have reasonably made if the earlier sanction had been a written warning rather than a final written warning. It found that the decision to dismiss was one that a reasonable employer could have reached in such circumstances. The EAT disagreed with this analysis, noting that the ET’s task is not to put forward a hypothesis of its own but to examine the reasoning of the employer and decide whether the employer’s decision to dismiss was reasonable in the circumstances. This involved considering whether the employer had attached significant weight to the ‘manifestly inappropriate’ final warning.

Mr Bandara’s appeal was therefore allowed and the case was sent back to the same ET to apply the correct test.

An ET is not permitted to substitute its view for that of the employer but must assess whether the employer’s decision falls within the range of responses a reasonable employer may adopt in the circumstances of the case. The decision in this case makes clear that in carrying out this assessment, an ET can consider whether an earlier disciplinary sanction was unsound and, if so, whether its influence on the decision to dismiss also renders that decision unsound, and the dismissal therefore unfair.

In finding the final written warning to be ‘manifestly inappropriate’, the ET relied heavily on the examples of misconduct in the BBC’s disciplinary code, noting that what Mr Bandara had done did not fit the BBC’s own definition of ‘gross misconduct’. This highlights the importance of ensuring that disciplinary policies are regularly reviewed to ensure that they accurately reflect the employer’s standards and do not class something as misconduct that could potentially be viewed as serious, or gross, misconduct. One way of addressing this can be to build some flexibility into the disciplinary policy to allow for a greater degree of discretion depending on the assessment of the seriousness of the conduct and number of instances of misconduct under consideration.

There is a clear learning point for those with decision making responsibilities in disciplinary proceedings in which an employee may be dismissed. If there is any doubt about the appropriateness of an earlier sanction, taking into consideration the employer’s disciplinary procedure and the employee’s length of service, then careful consideration should be given to the question of whether a dismissal would be appropriate if the earlier disciplinary action had involved no disciplinary sanction or a lesser sanction. If dismissal is nevertheless considered to be the appropriate sanction, the decision needs to be carefully recorded to ensure that this point is clear. An ET will then have the ability to find in the employer’s favour when it is clearly of the view that the overall decision falls within the range of reasonable responses open to the employer in the circumstances of the case.

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